Inside this Issue

A1 - General Contractor Can be Liable for Subcontractor’s Failure to Maintain Safe Scaffolding
A2 - Pollution Exclusion was Ambiguous and Unenforceable as Applied to Homeowner’s Claim Regarding Heating Oil Damage to its Basement.
A3 - Summary Judgment Incorrectly Granted against Project Owner for Independent Contractor Employee’s Death from Fall through skylight

Article 1

General Contractor Can be Liable for Subcontractor’s Failure to Maintain Safe Scaffolding

See similar articles: Privette | scaffolding liability | Site Safety

General Contractor on a housing project hired two subcontractors, one of whom installed scaffolding for use on the project. An employee of one of the Subs fell from the scaffolding and sued the GC for his injuries. Trial judge, relying on what is known as the Privette doctrine, granted GC’s motion for summary judgment finding that GC is not liable to a sub’s employee for injury from an unsafe workplace unless the GC affirmatively contributed to the conditions that led to the injury. This was reversed on appeal with the court holding there were questions of material fact that must be determined in a trial regarding whether the GC retained control over the jobsite safety via its safety plan and daily walk-throughs. Brown v. Beach House Design & Development, 85 Cal.App.5^th 516 (2022).

Evidence that the GC was responsible for procuring and maintaining the scaffolding for use by the subcontractors included testimony by one of the subcontractors had he had never set up scaffolding and didn’t include cost for scaffolding in their bid, and that in the Sub’s experience GCs usually provided scaffolding for use by all subcontractors on the site. Another subcontractor on the project, A&D Plastering Company, set up the scaffolding and after completing his work, the scaffolding remained on the project and was used by others, including the employee of the subcontractor who fell. The GC knew the scaffolding was being used by all labor at the site. A&D had no agreement with the GC to allow other subs to use its scaffolding.

The GC didn’t inspect A&D’s scaffolding after it was installed because “that wasn’t our role or duty in the contract with A&D. Their responsibility was to furnish the scaffold. They took full responsibility to supervise the scaffold and maintain it.” The GC testified that it “never inspected the scaffolding to ensure it was in a safe condition because that was A&D’s responsibility.”

“A&D was not on site every day; to the contrary, he said A&D's plastering work took only about six months, but the scaffolding remained on the job site for at least a year. Linden acknowledged that A&D employees did not come to the site to inspect the scaffolding on days they were not performing work, and he said that during periods when A&D was not on site, he was not aware that anyone was making sure the scaffolding was safe.”

There was evidence that the GC instructed A&D to erect scaffolding for the use of the other subcontractor whose employee fell. A GC employee authenticated a weekly task document prepared by Beach House stating that during the week of June 12, 2017, A&D “[s]et scaffolding at West and South Elev for Mezz desk fascia and trim installation,” “[s]et scaffolding on top of Canopy for South elev siding installation,” and “[i]ncrease[d] scaffolding height at East front elev for siding installation.”

The court stated that GC failed in its summary judgment motion to demonstrate the absence of trial issues of material fact.

Where a general contractor contracts with a third party to supply equipment for the use of its subcontractors, the contractor's potential liability to its subcontractors’ employees for defective equipment turns on the extent of the contractor's delegation to the third party—that is, whether the contractor “fully delegate[d]” to the third party the duty to maintain the equipment in a safe condition (citation omitted).” The court that “If the general contractor fully delegates to the third party the duty to provide safe equipment, the third party is responsible for any failure to take reasonable precautions to keep the equipment in a safe condition. But if the general contractor does not fully delegate the task of providing safe equipment, it may be liable in tort to an employee.”

The court found there were several trial issues of material fact. There were triable issues of fact as to whether Beach House undertook to supply scaffolding for O'Rourke and its employees. There were triable issues as to whether Beach House fully delegated to A&D the responsibility to provide and maintain the scaffolding.

The subcontract with A&D did not clearly set forth who was responsible for inspecting and maintaining he scaffolding after its installation – including the one-year period that the scaffolding remained on the property and was by used by the Plastering subcontractor. One paragraph of the A&D subcontract required it to provide safety controls while A&D employees used the scaffolding but it did not clearly require A&D to provide such controls at other times and for other subcontractors using the scaffolding.

There were also triable issues as to whether Beach House exercised retained control in a manner that affirmatively contributed to plaintiff's injury.

With regard to the whether the plaintiff was legally required to alledge affirmative misconduct by the GC the court explained,

“the critical inquiry for purposes of evaluating the exercise of retained control “is the relationship between the [general contractor's] conduct and the [subcontractor's] conduct, not whether the [general contractor's] conduct, assessed in isolation, can be described as ‘affirmative conduct.’ ” (citation omitted),That is, “neither ‘actual exercise’ nor ‘affirmative contribution’ requires that the [general contractor's] negligence (if any) consist of an affirmative act. The [general contractor's] negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty under (the law).

For these reasons, the court reversed the summary judgment and sent the case back to be tried on its merits.

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 25, No. 5 (July 2023).

Article 2

Pollution Exclusion was Ambiguous and Unenforceable as Applied to Homeowner’s Claim Regarding Heating Oil Damage to its Basement.

See similar articles: Insurance Dispute | Pollution Exclusion

Where an insurance carrier denied coverage for damages caused by a heating and air-conditioning company whose removal of a system from a residential home resulted in 170 gallons of heating oil leaking into the basement. The carrier argued that the oil was a “pollutant” and therefore excluded from coverage by the total pollution exclusion endorsement to the policy. The trial court agreed and granted summary judgment for the carrier. This was reversed on appeal, with the appellate court holding that the broad definition of “pollutant” in the policy was ambiguous. Regan Heating and Air Conditioning, Inc. v Arbella Protection Insurance Company, 287 A.3d 502 (Rhode Island 2023).

The Oil Company argued that in the context of its industry, home heating oil is not a pollutant.

The policy does in question stated that it did not cover:

“‘property damage’ which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any time.” (Emphasis added.) Under the policy, “ ‘Pollutants’ mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

The court noted that heating oil is not listed as a “pollutant” within the policy’s definition. Because the court never addressed this issue in any other case, it considered case law from other jurisdictions to conduct its review. A key distinction between the facts of this case and other cases where the pollution exclusion was found to apply is that the heating oil in question only leaked into the basement and did not get into the ground. This was not, therefore, traditional environmental pollution.

The Oil Company asserted that the court should adopt the conclusion reached by the First Circuit Court of Appeals in the decision of Nautilus Insurance Company v. Jabar, 188 F.3d 27 (1^st Cir. 1999) which found the same definition of pollutant to be ambiguous. There the court held:

“the pollution exclusion was ambiguous as applied to the underlying claims “because an ordinary intelligent insured could reasonably interpret the pollution exclusion clause as applying only to environmental pollution.”

The First Circuit found “ambiguity in the exclusion's definition of ‘pollutant[,]’ ” which defined it as:

“any solid, liquid, gaseous, or thermal irritant or contaminant[,]” because “the terms ‘irritant’ and ‘contaminant’ are virtually boundless[.]” Id. The court noted, and we agree, that “[a] purely literal interpretation of this language, without regard to the fact pattern alleged in the underlying complaint, would surely stretch the intended meaning of the policy exclusion.”

The Rhode Island court stated it endorsed the following commentary from an Indiana court decision:

“Jurisdictions applying a more ‘situational’ approach look to factual context and typically uphold the exclusion only in cases of ‘traditional’ environmental contamination. * * * While this framework may be more palatable than the literal view, it can still be problematic because the concept of what is a ‘traditional’ environmental contaminant may vary over time and has no inherent defining characteristics. This leaves courts in the awkward and inefficient position of making case-by-case determinations as to the application of the pollution exclusion.”

In its conclusion the court stated that it is apparent that the policy is “reasonably susceptible of different constructions” and must, therefore, be strictly construed in favor of Insured plaintiff. The court reversed the trial court decision and held summary judgment should have been granted to the plaintiff, Oil Company.

Article 3

Summary Judgment Incorrectly Granted against Project Owner for Independent Contractor Employee’s Death from Fall through skylight

See similar articles: fair trial | project owner site safety | send message | Site Safety | subsequent remediation

Trial court granted summary judgement against building owner for worker who fell through a skylight while doing work on a roof for an independent contractor. During trial, the plaintiff’s attorney violated an order granting a motion in limine prohibiting him from introducing evidence of subsequent remedial measures taken on the skylights. He also asked the jury to render their verdict “not just for these two folks. This is an answer for this entire community.” And counsel also referenced forty year inspections in the context of the collapse of the Surfside Tower in Florida that occurred during the trial. The cumulative impact of these comments by counsel, along with the expert witness’ comment regarding subsequent remedial measures resulted in this not being a fair trial on the question of whether the general rule that a property owner who employs an independent contractor will not be liable for injuries sustained by an employee of that contractor. Martex Corporation v. Artiles, 354 So. 3d 1122 (Florida, 2023).

The court explained the following:

“There is a long-standing line of cases in construction law that provides the following rules regarding whether a property owner should be held liable for an independent contractor's employee's injuries: ‘As a general rule, “a property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work.” (citation omitted). There are two exceptions to this rule.

First, a property owner may be held liable for an independent contractor's employee's injuries if the owner actively participated in the work or exercised direct control over the work, and failed to exercise that control with reasonable care. (citation omitted).

The second exception applies where the property owner fails to warn the contractor about concealed dangers not inherent in the work of which the owner had actual or constructive knowledge and which were unknown to the contractor or could not have been discovered through due care.’”

In the present case, the court concluded that this second exception might come into play. There was a possibility that the Owner knew or should have known about a concealed danger not inherent in the work – that being whether the skylights were potentially not up to code based on the fact that a prior roof repair was done without a permit. This created a genuine issue of material fact that the court stated prevented an entry of summary judgment.

Between this issue of material fact and the issue of counsel’s comments depriving the Owner of receiving a fair trial, the appellate court reversed the matter and remanded it for a new trial.

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